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Lieutenant governor legal battle hits courtroom

MINNESOTA PUBLIC RADIO
Published 2:42 p.m. CT Feb. 7, 2018

Lt. Gov. Michelle Fischbach chats with her lawyers before a motion hearing in the civil lawsuit by constituent Destiny Dusosky, Tuesday, Feb. 6 at the Ramsey County Courthouse in St. Paul.(Photo11: Photo courtesy MPR)

The dispute over Republican Michelle Fischbach's attempt to serve as both lieutenant governor and state senator went to a Ramsey County courtroom Tuesday. When there will be a final answer, though, remains unclear.

The lawsuit filed by a resident of Fischbach's Senate District 13, Destiny Dusosky of Sauk Rapids, contends the Republican lawmaker is violating the state Constitution's separation of powers clause and a revision from the 1970s that prohibits legislators from holding other offices.

Dusosky's lawyer, Charlie Nauen, argued before Judge John Guthmann that the language in the constitution is clear.

"She can't have one foot in the executive branch and the other foot in the legislative branch," Nauen said.

Nauen wants the court to force Fishbach of Paynesville to resign her Senate seat, which she has held since 1996. He is also seeking a temporary injunction to block her from voting in the Senate when the 2018 legislative session begins in two weeks.

"Unless this court decides, there's going to be an asterisk behind every single vote, procedural vote, committee vote, every single action," he said.

As Senate president, Fischbach ascended to the office of lieutenant governor to fill the vacancy created when DFL Gov. Mark Dayton appointed Tina Smith early last month to replace Al Franken as U.S. senator.

Fiscchbach has declined the lieutenant governor salary and has not been sworn in.

She contends that an 1898 Minnesota Supreme Court decision allows her to hold both jobs, and that the later constitutional revisions don't change the core reasoning of that ruling.

Her lawyer, Kevin Magnuson, argued that the court should not be deciding who can be a state senator.

"The real power to make that determination lies with the Senate, solely with the Senate," Magnuson said. "So, I don't think that you can enjoin the Senate, I don't think you can order them not to seat Sen. Fischbach."

Magnuson, who wants the lawsuit dismissed, also stressed that the duties of the lieutenant governor, as prescribed by the Constitution, are insignificant.

The case has critical implications for control of the Minnesota Senate.

Republicans hold a 34-32 advantage, pending the result of a special election Monday. If Democrats can hold that seat, then a court ruling against Fischbach would force a special election in her district that could potentially flip control.

Dusosky, who is active in DFL politics, said after the hearing that her motivations are not partisan.

"It's not politically motivated," Dusosky said. "I would be in the same position right now if this person was a Democrat or a Republican."

Fischbach, who also spoke briefly after the hearing, sees it differently.

"There has been potential for political motivation for the entire kind of process, so it certainly does have that potential," Fischbach said.

Judge Guthmann took the case under advisement. It's unclear how soon he might rule. The decision will most likely be appealed.